The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
Defendants move for summary judgment to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 56.
On August 3, 1983, plaintiff commenced this action against the Incorporated Village of Freeport ("Village"), William White, individually and in his capacity as Mayor of the Village, and G. Ruiz deZarate, individually and in his capacity as Superintendent of Buildings for the Village, seeking a declaratory judgment, an injunction, reinstatement of plaintiff to his previous position of employment and monetary damages. Plaintiff alleged three causes of action in his complaint: (1) defendants' discharge of plaintiff from his employment with the Village based on his relationship with one Salvatore Imburgio violated plaintiff's first and fourteenth amendment rights of free speech and association; (2) plaintiff's discharge was "arbitrary and capricious" and in violation of his fourteenth amendment rights to due process and equal protection; and (3) plaintiff's discharge without a hearing or some other grievance without a hearing or some other grievance procedure to appeal his termination of employment violated his due process rights under the fourteenth amendment of the United States Constitution and under article 1, section 6 of the New York State Constitution (Comp. P16-18).
Plaintiff was hired as a plumbing inspector for the Village on July 29, 1982. Plaintiff was granted this position as a "provisional appointee," under a notification which read in pertinent part on the back of the form: "Provisional employment may be terminated at any time." (deZarate Aff. p. 3 & exhibit C). At the time plaintiff was hired, Imburgio was also working for the Village as a building inspector. Imburgio, who also lived on the same street as the plaintiff, assisted in plaintiff's on-the-job training. Subsequently, Imburgio accepted a position with the Village Community Development Agency ("CDA"), where he was responsible for checking contractors' work to verify that it was done pursuant to contractual and code requirements. (Pettrozza Aff., P2; Jakubowski Aff.P4).
Previously, in 1980 and 1981, Imburgio had been a candidate for the Mayor of the Village and opposed the reelection of defendant White. During this campaign, Imburgio made various allegations concerning conflicts of interests which White and a Village Trustee, Alred Sirlin, purportedly had.
Despite these political allegations, defendant White was reelected as Mayor of the Village in 1981.
In the Fall of 1982, plaintiff, as part of his employment, inspected the plumbing in the Department of Public Works project then under construction. Although there is some dispute as to which construction company was the general contractor on the job,
it is undisputed that plaintiff advised defendant deZarate of possible code violations by the plumbing subcontractor, Kolin Plumbing. After such information was given to defendant deZarate, plaintiff claims he was told by deZarate to "ease up" and received from him "a cartoon illustration depicting a character which he [deZarate] labeled Petrozza buried under a load of concrete with the warning that if I kept bothering Scalco (the general contractor which plaintiff alleges was responsible for the project) by strictly enforcing the plumbing codes, this could happen to me." (Petrozza Aff. P4 & Exhibit A). Plaintiff claims that as a result of this cartoon illustration, he inferred that "deZarate was advising [him to] "look the other way," when it concerned inspections of defendant White's administration." (Petrozza Aff. P4). Although defendant deZarate acknowledges the existence of this cartoon and admits having seen it "along with several other cartoons hanging from different places within the offices" of the Village Building Department, he denies having actually given plaintiff the cartoon. (deZarate Reply Aff. p. 6-7). Furthermore, defendant deZarate denies having told plaintiff to "ease up" and attempts to contradict this allegation by submitting to the court copies of the Village's official response to Petrozza's notification of the contractor's code violations. (deZarate Reply Aff. p. 4).
On February 2, 1983, plaintiff alleges that after defendant deZarate saw him together with Imburgio during plaintiff's lunch break, deZarate, "in the presence of other employees, . . . warned [plaintiff] not to associated with . . . Imburgio in any way or form." (Petrozza Aff. P5; Jakubowski Aff. P6). Defendant deZarate also allegedly told plaintiff that Imburgio was a "bad influence" and if plaintiff "continued to associate with him" he (plaintiff) "would wind up on the unemployment line." (Petrozza Aff. P5; Jakubowski Aff. P6). Defendants admit that plaintiff was "told he should not associate with a Mr. Imburgio during business hours." (Defendants' 3(g) statement). After plaintiff explained to defendant deZarate that because he had several ongoing projects with CDA, he had to associate with Imburgio as a matter of necessity, deZarate allegedly told plaintiff that he could associate with Imburgio for business reasons only. (Petrozza Aff. P5).
Following this conversation, plaintiff alleges that he "made every effort to stay away from Imburgio socially, politically and professionally." (Petrozza Aff. P6).
In March, 1983, plaintiff was inspecting plumbing work at the Anchorage, a multi-dwelling housing project, whose plumbing contractor was Lakeville Plumbing, Inc. Alfred Sirlin, a Village Trustee, had a (publically) disclosed interest in this company.(Petrozza Aff. P7; Sirlin Aff. p. 2-3). Plaintiff notified the foreman to cease work pending submission of amended plans. During that same day, plaintiff alleges that Sirlin telephoned deZarate "to voice complaints." (Petrozza Aff. P7).Sirlin denies having ever made any such complaints. (Sirlin Aff. p. 1-2). Plaintiff further alleges that he was called into deZarate's office and "[i]n front of other employees, deZarate gave [him] a paper bag from Waldbaum's grocery to wear over [his] face, specifically advising [him to] use it during inspections." (Petrozza Aff. P7). Although deZarate denies that he was advising plaintiff to "look the other way" or that he brought such a bag into the office, deZarate does admit writing plaintiff's name on the bag and giving it to him to indicate "in just, that given his knowledge of plumbing, it would make no great difference" if he wore it during his inspections. (deZarate Reply Aff. p. 5-6).
On March 25, 1983, at approximately 11:30 a.m., plaintiff was observed by defendant deZarate and Frank Carry, a building inspector, leaving his house in the company of Imburgio. Plaintiff claims that he returned to his home to use his bathroom and while he was there for "no longer than five minutes," Imburgio "saw my car, and stopped and knocked on the door." (Petrozza Aff. P8). Imburgio was admitted into plaintiff's house by plaintiff's wife and purportedly discussed with plaintiff a "CDA construction job on Lillian Street for which [plaintiff] was inspecting the plumbing." (Petrozza Aff. P8).
When plaintiff returned to the office later that day, plaintiff received a formal "Warning Notice" from deZarate concerning his association or meeting with Imburgio.
This notice was witnessed by another employee, Milton Chester. Plaintiff claims that deZarate became "outraged" when plaintiff offered his explanation as to why he was there and that deZarate "exploded with a burst of expletives, heard by employees in an adjoining room." (Petrozza Aff. P9). Plaintiff further claims that he was then threatened by deZarate with loss of employment. (Petrozza Aff. P9; Jakobowski Aff. P6).
Defendants allege that plaintiff could not have been discussing the construction project on Lillian Street with Imburgio because according to Eric Hemphill, Director of CDA, all work was completed in ...